tv [untitled] May 21, 2012 11:30am-12:00pm EDT
might hold or usher in. and secondly, there were concerns about pre-action with strength, which is what section 12 is about. can you tell us about how those concerns evolved and how you addressed them? >> yes. and lord wakeham in his written evidence gives a lot of factual detail about this. but once the white paper called bringing rights home or rights brought home, i think it was called, the white paper was published and the bill obviously various interest groups weighed in to say they thought the bill as drafted might adversely affect them. one group is the churches, the roman catholic church and anglican church were very concerned that it might affect them. so the result of those
negotiations was what became section 13. and the other was the press. and they raised these concerns through representations originally to lord irvin who was handling the bill in the house of lords. it started in the house of lords, not in the house of commons. and then lord wakeham raised them on the floor of the house and he said in his written statement that he did that not as a representative of the press but to reflect his own opinions but he happened to be chairman of the pcc. and i was very anxious to achieve a consensus on this legislation. because i have a principle, which is that major constitutional change should only go through if there is some kind of greater legitimacy, either through consensus in parliament or through a referendum.
the conservatives were opposing the bill, that second reading, and i was anxious to see whether we could reach an accommodation so we could get their endorsement to it. and also i thought part of what lord wakeham and the pcc was saying was reasonable. if i may refer you to paragraph 103 where i refer to the letter lord wakeham wrote to chris smith on the 12th of january, 1998. january 12th, 1998, he said there are two central problems. one was issue of prior restraint. i thought they had a point there. but lord wakeham went on to say there was a second issue which you described as far more serious, which is whether the pcc should be a public authority within the terms of the bill. now, in fact, the pcc was not public authority under the terms of the bill. but what the pcc were trying to secure was a situation where the media were out with impact of
the bill, so you just throw a ring around them somehow and they'd be excluded from any adjudication on the conflict in the articles 8 and 10 or anything else. now, that was just impossible to meet. and i had to explain that to them and we didn't meet it. it's also simply incorrect for anybody now to say that nobody knew that human rights would lead to a law of privacy. of course they did. they said so. but as i brought out in my gareth williams lecture, we all knew he was going to do that. that was discussed endlessly in parliament. but to be truthful, the politicians thought they'd like to end the law of privacy but hand the means to the strand and the law lords, because it's tricky if you're a politician with the law of privacy, and we thought their lordships on the bench would do a better job. so it's really a question of
passing the parcel to them. everybody knew what was happening. >> so the pcc wasn't listed as a public authority for the purposes of section 6, but as a matter of ordinary principles of jurisprudence, it would have been so deemed, and there was an opinion give on the that effect. >> there was a great debate about whether in drafting the bill that you had a list of public authorities or whether, as happened with the freedom of information act, for example, they are scheduled. >> yes. >> it's as a matter of certainty whether an authority is public or not. whereas in the human rights act, it's structured in a different way. i haven't got section 6 in front of me directly, but there is reference to what the definition of a public authority, but it's much broader than that.
but what the -- but of course the courts are public authorities. and what the pcc had worked out was since the courts of public authorities and therefore as public authorities have to follow the obligations of the human rights act and the convention articles, they would, therefore, reflect those in their judgments and, therefore, indirectly the pcc or its members or anybody else would be subject to the convention. and that was what they were worried about. >> the second point, the law of privacy would develop on a case-by-case basis once articles 8 and 10, as it were being incorporated. that was a point which lord bingham made at the time in 1998. >> yeah. and aside from the fact that it frankly suited the convenience of politicians on both sides to
have the courts do this job, i also thought the courts would make a better job of it because this -- this balance is to be able to achieve in respect to privacy is so tricky, because whereas i said, defamation is easy enough in one sense because what you're dealing with is what isn't true. with privacy, what you're dealing with is whether something which is true should nonetheless be kept private, and that is very complicated. and i think the courts have done a good job in developing -- >> of course one of the consequences of that, possibly it's not relevant for this inquiry, but it's important worth making, that the flak has been directed to the judiciary rather than to anybody else. >> i accept that, sir. and i also think, and i said in my gareth williams lecture, that
we do now need -- there is a need now for parliament to amend the law so there is a tort of breach of privacy which applies -- don't just apply to public authorities, so it applies to everybody. so i think it is time for parliament to accept the responsibility we passed to the judiciary. >> the media genesis to section 12, would you kindly look, mr. straw, under tab 9 to the debate. >> i wonder if i could -- to reduce the bundle, i left some of these -- if i could ask somebody to pass me the other tabs, would that be all right? >> of course. of course. of course. >> my researcher there can pass them to me. i made a very poor judgment that i'd never be asked about them. >> this is the second reading of
the bill of the state of commons on the 2nd of july, 1998. it's an internet printout and runs 21 pages. >> anyway, if you don't mind, if you just go on, i'll find knit due course. >> no, no, no, no. i'd rather you -- >> i think i've still not got number 9. >> well, let me give you mine. >> i'm very sorry about this. >> no, no, don't worry. >> i've got three. okay. >> they're normally in order numerically. >> no. sir, what i did -- >> it doesn't matter. >> -- to reduce the bundle on the train, i thought i don't need those. that was a really stupid thing to do, and i'm very sorry. >> you were debating what was then clause 13, which became section 12. and on the second page of 21 at the top, you told the commons, as the committee will know, there was concern in some sections of the press that the
bill might undermine press freedom and result in a privacy law by the back door. and you said that was not the government's view, and you dealt with that issue. with the issue of prior restraint and what began section 12, the third paragraph, you said we recognized the concerns expressed in the press, as i've made clear, for example, and the exact on the churches. we're anxious, et cetera, to deal constructively with it. in light of those concerns, we decided to introduce a new clause specifically designed to safeguard press freedom. >> yes. >> we thought long and hard about it, and this is clause 13. and then at page 6 of 21 towards the top of the page, you make it clear that there were discussions which involved you, lord williams, late lord williams, and lord wakeham. in the third paragraph, the new clause, which is number 13, was drafted in consultation with lord wakeham and representatives
of the national and regional press. they had given it a warm welcome. so the upshot is, is that part of the explanation for the genesis of section 12, consultation agreement, if you like, that you reached with lord wakeham, who may well have been speaking for a large section of the press, is that fair? >> yes. certainly was speaking for a large section of the press. i mean, whatever his position in the house of lords, he was chairman of the press commission. and by the way -- >> it's probably the other way around, isn't it? because he couldn't really do as was chairman of the press complaints commission, which is supposed to be independent, isn't it? i thought he was doing it in his personal capacity. >> well, sir, my recollection is quite a lot of the correspondence was signed by him in his capacity as chairman of the pcc. >> yes. well, that in itself raises a not uninteresting question. >> yes, i --
>> i'm not going -- it's of historical value only. >> but it wasn't a piece of private enterprise by lord wakeham. there would have been no purpose served in busy ministers spending their time talking to lord wakeham if it was just a sort of personal foible. he had a very influential position, and he was planning to speak on behalf of the press. yes, mr. jay, you're right, i worked on the basis that if i could square lord wakeham, i'd square most sections of the press, which is what i wanted to do. >> i understand that. and that's how it worked, and it's quite clear looking at the documents that you've provided for the relevant period, that's exactly what happened. but it does raise a question ongoing for the future as to whether that is the appropriate row for somebody who holds that position in whatever body -- >> yes. oh, sorry. i've been slow. i agree.
i think for the future if there is -- yeah, that if -- as there will be a very different system for dealing with press complaints, that person will, as it were, being in a quasi-judicial position. and that should be very separate from somebody who's -- to represent the wider interest of the press and the change in discretion. yes, i accept that. >> some fairly sophisticated points were made by mr. garnier. >> he always makes sophisticated points. >> i think it's fair to say, although he was quibbling as to whether section 12 would have much substantive effect, there was generally speaking cross-party support for this clause. >> yes, there was. and the added advantage of
dealing with lord wakeham was that, of course, he'd been a leading figure in the previous conservative administrations. and -- i mean he's -- i had a good relationship, i still do. i have respect for him. i said in my guardians lecture, his successor as chairman of the pcc been of a similar caliber, the pcc would not have ended up in the state that it is. but i don't think we ever had this explicit conversation, but i worked on the basis that if lord wakeham said yes, he would certainly be delivering the press and almost certainly be delivering the conservative front bench as well. and that was unsaid but there. >> what you made explicit, though, mr. straw, was to underline your government's commitment to the need to preserve self-regulation, because we see that in the third paragraph on page 6 of 21 and
indeed on the fourth paragraph. would you agree? >> yes. and that was a view we were taking at the time. i mean that the pcc had been improved -- there was i mean some good evidence, not because of the way in which lord wakeham was operating, that the pcc was becoming effective. i say, we all knew that we were going to end up with the law of privacy, and anyway, we all had loads to do. why at that stage start on an agenda which had been unformed about how to regulate the press. i mean, there would have been no point. it certainly wasn't in my mind. >> it certainly wasn't a labor party manifested commitment in 1997, and the death of princess diana the end of august, i think, 1997, did that cause any change of thought or not?
>> not -- not directly. no. i mean, the sort of media surrounding that was terrible, but not directly. and i think insofar as we had that conversation in government, the view was let's see where this gets to. the pcc plus a developing law of privacy might work. >> some would say it's a traditional british approach. let's see how the law develops. you know it's going to move in a certain direction, and the ramifications of that can be seen over the forthcoming years. >> yes. if i may say so, mr. jay, it's not a bad approach to do things gradually because the risks of disaster are reduced.
>> okay. that probably covers the issue on section 12. now, i address now the amendment to the data protection act in 1998 following the reports of 2006. you picked this up, mr. straw, in paragraph 82 of your witness statement. this is our page 02555. mr. thomas is arguing very strongly for increasing the penalty for a breach of section 25 from a fine only to a term of imprisonment. you say in paragraph 82 hm government agrees. >> yep. >> could you tell us why, please, mr. straw?
>> the -- why we agreed because we thought the case he had made out was a very good one, that the penalty did not to be strengthened because of the evidence of abuse which he provided in that report, which was in may 2006. i say here -- i agree with this but for the first 14 months, this was handled not by -- i was leader of the house. i became leader of the house two days before the publication of this report in the first week in may 2006 and stayed in that position until the end of june 2007. so this -- the policy, therefore, is one i inherited. but as it happens, i only agreed that we ought to increase the penalty. >> was it then government thinking that it was simply a question of increasing the penalty rather than changing the test in section 55?
because i think in section 54, the test is purely an objective one. but we know in section 78 that the 2008 act, it's part objective, part subjective, if you take into account the reasonable belief of the editor. >> yes. >> but was the government's view all we need do is increase the penalty without at the same time introducing this part objective, part subjective test? >> the part subjective test came later. later. later. later. >> i mean -- >> that was part of the ultimate compromise. >> that was, sir. it was. >> but the case -- the case for increased sanction was if it was purely financial, then the law was quite clear on comfortable territory now, the law is quite clear that you have to have regard to means. and if people of little means broke the law in this way, then actually there was very little that could be done by way of sanction.
and that was so whether you were doing it because you wanted to find out about your daughter's boyfriend, for example, or whether you were doing it for industrial or commercial reasons. >> yes, i mean, you're right, sir. you are, if i may say so, the expert on sentencing. but my own view is that -- i mean, the maximum sentences laid down by parliament, although very rarely applied by the courts, they convey a message about the relative seriousness which parliament and, therefore, the public attach to that particular transgression. and i regret the fact that in the data protection act, which is also a bill which i put through, we had not spotted that
this penalty was too late, but we hadn't. >> but if i pick up the point that was made when we were discussing this, i think with mr. graham, that actually if actually, if you're doing it for the purposes of business and at at high volume, it is something which society should disapprove of rather more than might be for those that range of purely fiscal penalties. >> i agree. it may be, let me say this is a very recent thought i've had, that in the light of what we think may have happened that the penalty itself should be higher
still, i mean tougher still than two years. but certainly i think the case for having a two-year penalty maximum was very strong. >> on the basis that you really identify that then the court is in a position to calibrate the gravity of the offending and in appropriate cases to discharge or find or pass a penalty or ultimately a custodial sentence. >> indeed sir, yes. >> as you say in paragraph 83, the press objected, when you're referring to the press there, are you able to be more specific, mr. straw? >> well, it was -- i don't know -- the people who came to
see me were mr. daker, mrs. brooks from the telegraph the chief executive and sometimes guy black who sometimes of the secretary of the pcc and was working as an adviser to "the telegraph." i understood they were representing the views of the national press as a whole. i had no reason to think they weren't. >> because these were the most powerful figures either within the pcc or the editors code committee. >> yes. mr. jay said can we see your precise credentials. they were powerful figures who were representi generality. >> well, you knew them and knew
that's what they were. >> yes. it wasn't an issue. >> and paragraph 83 you spoke of a meeting that the minister sponsoring the bill had on the 17th of january 2008. we have the note on the meeting at the time, 44. i don't think it's necessary to turn it up. we know mr. brett and garnier have had a powerful voice on that occasion. and moving forward in paragraph 84 you met directly with mr. daker, mrs. brooks, i don't think mr. hinton. >> mr. hinton i don't think was there, no. >> and that was referred to in a letter you wrote on the 12th of february. exactly clear. it under tab 46, it's unclear where it was, lunch or dinner.
>> i don't think it was lunch or dinner. i think it was in my office. in fact, i'm almost certain it was in my office. >> if we could look at the text of the letter of february, you write mr. daker, you say under the heading day of protection, we're not proposing to criminalize any conduct which is not currently against the law, however do understand your and $ media's concern more generally about the introduction of custodial sentences for breach of section 65. it was not considered they would have that effect. we're not aware section 55 has caused any problems since the dpa came into force. the penalties were proposed and strongly argued for by the information commissioner to strengthen the protection of individual's rights to respect for their privacy.
and then if i can look six lines into the next paragraph, "but i've reviewed the propose as in the light of the apportioned points you and others have made. as i explained when we met, i was increasingly minded to consider the reasonable belief of someone when the crime was committed and there is therefore case of reconsidering it in slower time. then you say alongside this i'm faced with the overwhelming need to achieve ascent for the bill by may 2008 with an existing legal restrictions against prison officers taking industrial action otherwise terminated. taking all these factors in account i'm making a recommendation to colleagues and i will be back in touch. so you're faced here, mr. straw, with a double -- on the one hand you've got the press stirring up trouble, making the argument
you'd expect them to make and we can analyze those in a moment. then you would say that's even more important. you had to get this through -- this bill through by a particular day because there are other provisions in it which are actually vital, is that it? >> yes. and this obviously was extremely hard for others outside or say for mr. thomas to comprehend because it was my problem, not theirs. but it made me recall that at the end of august 2007 the prison office association called an unlawful one-day national strike and they gave us 15, 1-5, minutes' notice of this. it led to huge disruption in britain's jails, led to the firing of a whole wing in lancaster farm and it was
completely contrary to agreement which the prison authorization had vol industry signed called the jirpa -- please doesn't ask me what the acronym stands for because i don't remember -- that they had signed in return for the statutory bar action being taken from the statute book. now, they broke that agreement and had given notice at that they were going to terminate it in any event and the date of termination was the 8th of may. the absolute imperative was that i got this bill through both houses and into royal ascent by the 8th of may because we knew anyway given the state of mind of them they would go on strike
the next day. that's life, that's politics. what in my mind at this stage was i might have to withdraw the whole provisions to increase the penalty for this legislation and then find another bill to put it in in the following session. so that's what was going on there. >> we'll take a few moments to take a break. >> all rise. here's a look at what's coming up live today on the c-span networks. at 2:00 p.m. eastern, former supreme court justice john paul stevens speaks at the american law institute 2012 annual meeting. since he retired, he's written a book called "five chiefs, a supreme court memoir" which chronicles his time on the